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Published by the Indiana Office of Court Services

D.H. v. Common Wealth Apts., No. 23A-EV-1404, __ N.E.3d __ (Ind. Ct. App., March 22, 2024).

March 25, 2024 Filed Under: Civil Tagged With: Appeals, J. Bailey, M. May

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May, J.

D.H. appeals the trial court’s order granting The Common Wealth Apartments (“Common Wealth”) possession of D.H.’s apartment.  D.H. raises two issues on appeal, but we find one dispositive: Whether the trial court erred in granting possession of the apartment to Common Wealth, which is a landlord that accepts federal housing subsidies, when Common Wealth failed to give D.H. a thirty-day notice to vacate.  We reverse and remand. 

…

A provision of the Coronavirus Economic Stabilization Act (“CARES Act”) enacted in 2020 placed a temporary moratorium on eviction filings.  15 U.S.C. § 9058….

Our first step in ascertaining whether the thirty-day notice provision outlined in 15 U.S.C. § 9058(c) applied to Common Wealth is to determine whether D.H.s apartment qualified as a “covered dwelling” under 15 U.S.C. § 9058(a)(1)…

Having determined that D.H.’s apartment qualified as a “covered dwelling” within the meaning of 15 U.S.C. § 9058(c), we must next determine whether that provision of the CARES Act was still in effect when Common Wealth initiated eviction proceedings against D.H..  Following expiration of the CARES Act’s 120-day statutory eviction moratorium in July 2020, Congress did not renew it.  Ala. Ass’n of Realtors v. U.S. Dep’t of Health & Hum. Servs., 141 S. Ct. 2485, 2486 (2021).  When the Centers for Disease Control and Prevention (“CDC”) subsequently attempted to use its administrative power to extend the moratorium further, the United States Supreme Court held the CDC lacked the authority to do so without authorization from Congress.  Id. at 2490.     

D.H. nevertheless contends that, while the eviction moratorium authorized by 15 U.S.C. § 9058(b) has expired, the notice provision outlined in 15 U.S.C. § 9058(c) remains in effect.  He notes that “the continuing vitality of the 30-day notice requirement is shown by the logic of the statute, which states that the eviction moratorium expired after 120 days and that landlords could not provide the 30-day notice to vacate before the moratorium had ended.”  (Appellant’s Br. at 12-13.)  While Indiana courts have not specifically addressed this issue, courts outside of Indiana have analyzed the issue and concluded the notice provision remained in effect after expiration of the eviction moratorium.  

…. We follow the lead of our sister states and hold that the notice provision did not expire with the temporary eviction moratorium.  Common Wealth failed to comply with 15 U.S.C. § 9058(c) when it did not give D.H. a thirty-day notice before initiating eviction proceedings. …

Conclusion

Common Wealth violated federal law by failing to give D.H. a thirty-day notice to vacate as required by 15 U.S.C. § 9058(c) before initiating eviction proceedings against him.  We reverse the trial court’s judgment and remand with instructions to dismiss Common Wealth’s notice of claim. Reversed and remanded.

Felix, J. concurs.

Bailey, J., concurs with a separate opinion.

Bailey, J., concurring with separate opinion.

I concur but write separately to note that the 30-day notice requirement expired when the national emergency concerning the coronavirus disease 2019 (“COVID-19”) pandemic terminated on April 10, 2023.  However, because D.H.’s non-payment of rent occurred before that date, Common Wealth was required to provide him with 30 days’ notice to vacate prior to beginning eviction proceedings.

…

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